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Sentencing guidelines violate right to jury


“The majority in Blakely, faced with dissenting opinions that as much as said that the decision doomed the federal sentencing guidelines, might have said, no it doesn’t; it did not say that.”

Hon. Richard A. Posner
7th Circuit Court of Appeals

The Seventh Circuit held on July 9 that the U.S. Supreme Court decision in Blakely v. Washington — striking down a state’s determinate sentencing scheme — applies to the federal sentencing guidelines, as well.

Freddie J. Booker was charged with possession with intent to distribute at least 50 grams of cocaine base, which carries a minimum sentence of ten years and a maximum of life.

A jury found him guilty and, at sentencing, U.S. District Court Judge John C. Shabaz found by a preponderance of the evidence that the defendant: (1) had distributed 566 grams over and above the 92.5 grams found in his duffel bag (an amount Booker did not contest, but claimed that he didn’t possess); and (2) had obstructed justice.

The effect of those findings, under the federal sentencing guidelines, was to place the defendant in a sentencing range of 360 months to life. Without those findings, his maximum would have been 262 months.

Shabaz sentenced Booker to 360 months, and Booker appealed, arguing that the sentence violated his right to a jury. The Seventh Circuit expedited the appeal, agreed with Booker, and vacated the sentence, in a decision written by Judge Richard A. Posner, and joined by Judge Michael S. Kanne. Judge Frank H. Easterbrook dissented.


In Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004), the U.S. Supreme Court invalidated, under the Sixth Amendment right to jury trial, a statute of the State of Washington that authorized the sentencing judge to impose a sentence above the “standard range” set forth in the statute, if he found any aggravating factors that justified such a departure.

Pursuant to that grant of authority, the judge had imposed a sentence of 90 months, exceeding the standard range of 49 to 53 months for his offense, second-degree kidnapping.

The Supreme Court had already held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

In Blakely, the court held, “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”

The court added, “In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority (emphasis in original).”

Federal Guidelines

The court concluded that the federal guidelines are indistinguishable from those in the State of Washington, and thus, any sentence above 262 months violates Booker’s right to a jury.

The court reasoned, “True, that maximum is imposed not by the words of a federal statute, but by the sentencing guidelines. Provisions of the guidelines establish a ‘standard range’ for possessing with intent to distribute at least 50 grams of cocaine base, and other provisions of the guidelines establish aggravating factors that if found by the judge jack up the range. The pattern is the same as that in the Washington statute, and it is hard to believe that the fact that the guidelines are promulgated by the U.S. Sentencing Commission rather than by a legislature can make a difference. The Commission is exercising power delegated to it by Congress, and if a legislature cannot evade what the Supreme Court deems the commands of the Constitution by a multistage sentencing scheme neither, it seems plain, can a regulatory agency.”

The court concluded, “It would seem to follow, therefore, as the four dissenting Justices in Blakely warned, and several district judges have already ruled, that Blakely dooms the guidelines insofar as they require that sentences be based on facts found by a judge (citations omitted).”

The court added, “The majority in Blakely, faced with dissenting opinions that as much as said that the decision doomed the federal sentencing guidelines, might have said, no it doesn’t; it did not say that.”

The court continued, “The qualification ‘based on facts found by a judge’ is critical. Nothing in Blakely suggests that Congress cannot delegate to the Sentencing Commission the authority to decree that possession with intent to distribute 658.5 grams of cocaine base shall be punished by a sentence of at least 360 months though the statutory minimum is only 10 years. All it cannot do under Blakely is take away from the defendant the right to demand that the quantity be determined by the jury rather than by the judge, and on the basis of proof beyond a reasonable doubt.”

What the court held

Case: U.S. v. Freddie J. Booker, No. 03-4225.

Issue: Does the U.S. Supreme Court decision in Blakely v. Washington — striking down a
state’s determinate sentencing scheme — apply to the federal sentencing guidelines, as well?

Holding: Yes. The federal guidelines may not be used to enhance a sentence unless the facts supporting the enhancement are found by a jury beyond a reasonable doubt.

The court acknowledged that any sentencing scheme involves “residual discretion” in the sentencing judge. Neverthe-less, the court concluded, “there is a difference between allowing a sentencing judge to consider a range of factors that may include facts that he informally finds — the pre-guidelines regime, under which ‘once it [was] determined that a sentence [was] within the limitations set forth in the statute under which it [was] imposed, appellate review [was] at an end,’ though sentences would occasionally be reversed because the district judge had relied on an impermissible consideration, failed to exercise discretion, or based the sentence on false information, and commanding him to make factfindings and base the sentence (within a narrow band) on them. The latter is what Washington’s sentencing guidelines did, and there is no basis for thinking that Blakely would have been decided differently had the identical guidelines been promulgated, with the identical effect on sentences, by the Washington Sentencing Commission (cites omitted).”

Accordingly, the court held, “As an original matter, then, we think that the guidelines, though only in cases such as the present one in which they limit defendants’ right to a jury and to the reasonable-doubt standard, and thus the right of defendant Booker to have a jury determine (using that standard) how much cocaine base he possessed and whether he obstructed justice, violate the Sixth Amendment as interpreted by Blakely. We cannot be certain of this. But we cannot avoid the duty to decide an issue squarely presented to us. If our decision is wrong, may the Supreme Court speedily reverse it.”

The court continued, nevertheless, to acknowledge that its opinion may conflict with the United States Supreme Court’s decision in Edwards v. United States, 523 U.S. 511 (1998). The court noted, however, that certiorari in Edwards was not granted for the purpose of determining the scope of the right to trial by jury, but only to resolve a conflict in the circuits over whether the guidelines require the judge or jury to determine “both the kind and the amount of he drugs at issue in a drug conspiracy.” Edwards, 523 U.S. at 513. The petitioner did not argue that the guidelines were unconstitutional. Thus, the court concluded that it was not bound by the decision in Edwards.


Having held the sentence unconstitutional, the court turned to the remedy the district court should apply on remand.

The court stated that, if the government does not object, the district court may simply sentence Booker to 262 months, because the jury findings alone would justify the sentence.

The court added, however, that, if the government wants a higher sentence or Booker wants a lower one, there must be a new sentencing hearing.

The court warned that this will not work if the facts the government seeks to establish are elements of a statutory offense, because they would then have to be alleged in the indictment, and reindictment would present a double jeopardy problem.

The court only identified double jeopardy as a potential problem, however, and declined to address whether reindictment would necessarily violate the clause. The court also declined to decide whether the entire federal sentencing guidelines were unconstitutional.

The court did acknowledge that possibility, however, and warned that it would be wise of the district court, on remand, to prepare for that possibility, and impose an alternative sentence not based on the guidelines: “It might seem that if the substantive portions of the guidelines are not severable from the requirement that the judge find the facts relevant to the sentence, a 262-month sentence would be illegal. We do not think so. If the guidelines fall, the judge is free as he was before the guidelines were promulgated to fix any sentence within the statutory range, and the range for Booker, remember, is 10 years to life. Since the fall of the guidelines is a quite possible outcome, it would be prudent for the judge in any event to select a fall-back sentence.”

The court summarized its opinion as follows: “(1) The application of the guidelines in this case violated the Sixth Amendment as interpreted in Blakely; (2) in cases where there are no enhancements — that is, no factual findings by the judge increasing the sentence-there is no constitutional violation in applying the guidelines unless the guidelines are invalid in their entirety; (3) we do not decide the severability of the guidelines, and so that is an issue for consideration on remand should it be made an issue by the parties; (4) if the guidelines are severable, the judge can use a sentencing jury; if not, he can choose any sentence between 10 years and life and in making the latter determination he is free to draw on the guidelines for recommendations as he sees fit; (5) as a matter of prudence, the judge should in any event select a nonguidelines alternative sentence.”

The Dissent

Judge Easterbrook dissented, concluding, “This is the wrong forum for such a conclusion; and whatever power we may possess should not be exercised to set at naught a central component of federal criminal practice.”

Related Links

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Case Analysis

Addressing the procedural issues, Easterbrook argued, “The Supreme Court alone is entitled to declare one of its decisions defunct,” referring to Edwards.

Addressing substance, Easterbrook concluded that Blakely is distinguishable, arguing, “Blakely arose from a need to designate one of two statutes as the ‘statutory maximum.’ Washington called its statutes ‘sentencing guidelines,’ but names do not change facts. Nonetheless, the reading my colleagues give to this passage is that it does not matter whether the maximum is statutory; any legal rule, of any source (statute, regulation, guideline) that affects a sentence must go to a jury. Certainly Blakely does not hold that; it could not ‘hold’ that given that it dealt with statutes exclusively. Attributing to Blakely the view that it does not matter whether a given rule appears in a statute makes hash of ‘statutory maximum.’ Why did the Justices deploy that phrase in Apprendi and repeat it in Blakely (and quite a few other decisions)? Just to get a chuckle at the expense of other judges who took them seriously and thought that ‘statutory maximum’ might have something to do with statutes? Why write ‘statutory maximum’ if you mean ‘all circumstances that go into ascertaining the proper sentence’?”

In conclusion, Easterbrook wrote, “Apprendi and Blakely hold that the sixth amendment commits to juries all statutory sentencing thresholds. Perhaps the Court eventually will hold that some or all of the additional determinations that affect sentences under the federal Sentencing Guidelines also are the province of jurors. But Blakely does not take that step, nor does its intellectual framework support it — and Edwards holds that the current structure is valid provided that juries make all decisions that jack the maximum sentences. I would treat Blakely as holding that, when there are multiple statutory caps, the ‘statutory maximum’ is the lowest one and the jury must determine whether statutory thresholds to increased ranges have been satisfied. To read more into Blakely is to attribute to that opinion something beyond its holding, and to overthrow the real holdings of other decisions.

“Today’s decision will discombobulate the whole criminal-law docket. I trust that our superiors will have something to say about this. Soon.”

Click here for Case Analysis.

David Ziemer can be reached by email.

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